Kolod v. United States
| Citation | 371 F.2d 983 |
| Decision Date | 08 March 1967 |
| Docket Number | No. 8268-8270.,8268-8270. |
| Parties | Ruby KOLOD, Appellant, v. UNITED STATES of America, Appellee. Willie Israel ALDERMAN, Appellant, v. UNITED STATES of America, Appellee. Felix Antonio ALDERISIO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Edward Bennett Williams, Washington, D.C. (Harold Ungar, Washington, D.C., for appellant Ruby Kolod, William P. Johnson and Donald L. Giacomini, Denver, Colo., for appellant Willie Israel Alderman, W. H. Erickson, Denver, Colo., for appellant Felix Antonio Alderisio, were with him on the brief), for appellants.
James A. Clark, Denver, Colo., and William S. Lynch, Washington, D. C. (Lawrence M. Henry, U. S. Atty., Denver, Colo., Brian P. Gettings and Phillip R. Michael, Washington, D. C., were with them on the brief), for appellee.
Before MURRAH, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges.
Appellants were convicted by a jury in the United States District Court for the District of Colorado under the first count of an indictment charging a conspiracy to transmit in interstate commerce communications containing threats to injure and murder one Robert Sunshine in violation of 18 U.S.C. § 371 and 18 U.S.C. § 875(c). Another co-defendant, Americo Di Pietto, was acquitted of that charge. Appellants Kolod and Alderisio and co-defendant Di Pietto were indicted in a second count for transmission in interstate commerce of communications containing threats to injure Sunshine with intent to extort from him approximately $65,000 in violation of 18 U.S.C. § 875(b). The jury acquitted all three of this charge. The court sentenced appellant Kolod to imprisonment for a term of four years and a fine of $7,500; appellant Alderman to imprisonment for a term of three years and a fine of $5,000; and appellant Alderisio to imprisonment for a term of four and one-half years and a fine of $7,500.
The alleged conspiracy related to a certain oil transaction. According to the evidence of the prosecution, in June 1959 Robert Sunshine and others persuaded appellant Kolod to join them in an oil-lease investment in Nebraska. Kolod paid $78,150 in cash for a joint interest that was then owned by William H. Young, a consulting geologist and business associate of Sunshine. Ten thousand dollars of Kolod's purchase money was paid directly to Young while the balance of $68,150 was turned over to Sunshine to be held in escrow pending transfer of warranted title and confirmation of current production. Kolod's interest was later divided equally between himself and appellant Alderman.
Kolod and Alderman did not receive any oil payments out of their investment until July 1960. In the meantime, Sunshine had invaded the escrow money to pay off encumbrances on the oil properties, and by October 1960 the escrow money was completely exhausted. During that month Kolod and Alderman visited Sunshine at his office in Denver to express their displeasure with the transaction. Sunshine was told that since he had given personal approval of the deal, he would be looked to for return of the full purchase price, either in a lump sum or in oil payments. Thereafter, in December 1960 and January 1961, Sunshine sent Kolod and Alderman the only additional oil run checks that were to come from actual production.
Throughout the spring of 1961 there were numerous long-distance telephone conversations between Kolod and Alderman in Las Vegas, Nevada and Sunshine in Denver relating to the cessation of oil payments and Kolod's and Alderman's demand for return of their invested money. According to Sunshine's testimony at the trial, these conversations included numerous threats by Kolod and Alderman to the effect that unless the money was returned promptly, Sunshine would receive a visit from "a lawyer" or "a Chicago lawyer" who would not be coming for the purpose of suing. Sunshine understood these remarks to mean that he would be killed if the money was not returned in full. The threatening nature of at least one of these long-distance conversations was verified by William Young who, at Sunshine's request, listened in on an extension telephone.
In a telephone conversation between Las Vegas and Denver on June 22, 1961, Kolod instructed Sunshine to give the money to Kolod's nephew who would be attending a dentists' convention in nearby Boulder, Colorado. On June 28, Sunshine and Young met the nephew at the Denver Airport and reported that the money was not yet available. The nephew suggested that in view of Kolod's anger over the situation, Sunshine had better straighten out the matter immediately; whereupon Sunshine placed a call to Kolod from a pay station at the airport. The conversation was brief with Kolod responding that he would talk to Sunshine later. That evening Kolod called Sunshine to tell him that the matter had been discussed with Alderman and they had decided "to send a lawyer to take care of" him.
On July 6, 1961, appellant Felix Alderisio and Americo Di Pietto visited Sunshine at his office in Denver. Both men were from Chicago and unknown to Sunshine. Both had registered at Denver's Brown Palace Hotel where Alderisio used a fictitious name and address. Alderisio had known Kolod and Alderman for approximately ten years, and several weeks before the visit to Denver he had been a guest at the Desert Inn in Las Vegas where Kolod was an officer and stockholder. At that time, a check for $16,600 was issued to Alderisio by the Desert Inn after Kolod presented the hotel teller with cash in the same amount.
According to Sunshine, Alderisio introduced himself, sat down, and stated: Di Pietto said nothing except to introduce himself as "Pete." Sunshine attempted to reason with the two men by demonstrating the legitimacy and his own good faith in the oil-lease transactions. After over an hour of discussion, Alderisio told Sunshine that only Kolod could save him. At Sunshine's suggestion, Alderisio placed a long-distance call from Sunshine's office to the Concord Hotel near Monticello, New York where Kolod and Alderman were then staying. When Sunshine was put on the telephone, Kolod told him that "he and Alderman had sent Alderisio to let Sunshine know that there was no fooling around; that they meant business." Kolod then agreed to meet with Sunshine in Las Vegas to work out a final solution for repayment of the money. At the conclusion of the telephone conversation, Alderisio warned Sunshine of severe consequences if he failed to work out a settlement satisfactory to Kolod. Then, he and Di Pietto departed.
In August 1961, Sunshine and Young went to Las Vegas where Sunshine agreed to repay Kolod and Alderman the full $78,150 plus one-third "profit," less amounts already paid. Payments were to be made in monthly installments of approximately $2,000, and in the event actual oil runs were insufficient Sunshine himself was to make up the difference. Thereafter, some payments were made by Sunshine based upon fictitious oil run statements, but some of the checks were returned by the bank to Kolod and Alderman for insufficient funds.
In February 1962, in an interstate telephone conversation relating to the returned checks, Kolod told Sunshine that he might have to send Alderisio again. Then in the early summer of 1962, Kolod told Sunshine by telephone that he was leaving Las Vegas for a trip to Europe, that he would be seeing Alderisio enroute, and that he wanted to be able to tell Alderisio that all of the money had been returned. Sunshine, however, simply continued to send monthly installment checks. Later in the summer, Sunshine had a telephone conversation with Alderman who expressed the hope that the money be paid in full before Kolod's return to the United States so that Sunshine could avoid another visit from Alderisio. Shortly thereafter, Sunshine received a call from Kolod in New York who assured him that they still wanted back all of their investment plus the one-third profit. Sunshine advised Kolod that he was working on a sale of the oil interests so that the balance of their money could be paid in full. In the fall of 1962, Kolod called Sunshine again and gave him until the first of the year to pay up.
In December 1962, Sunshine went to Las Vegas and attempted to borrow money from Kolod. Later in the month, Sunshine was indicted for embezzlement of funds from a Dr. W. S. McClymonds of Denver, and all of his contacts with appellants Kolod, Alderman and Alderisio were terminated.
The trial was essentially a contest of credibility between Sunshine and his associates on the one hand and Kolod, Alderman, and Kolod's nephew on the other as to whether Sunshine was in fact threatened in interstate telephone conversations. Alderisio and Di Pietto did not testify. This consolidated appeal from the convictions of Kolod, Alderman, and Alderisio points to four rulings in the trial court which, appellants contend, constitute grounds for reversal. These are:
(1) the denial of an opportunity to present before the jury evidence that agents of the Federal Bureau of Investigation had placed a listening device in the executive conference room of the Desert Inn and had never heard Kolod threaten anyone over the telephones in that room;
(2) the denial of a motion by appellants Kolod and Alderman for severance of their trial from that of appellant Alderisio;
(3) the denial of appellants' request for an instruction to the jury that an actual agreement to transmit threats by interstate telephone is an essenial element of the offense charged in the first count of the indictment; and
(4) the denial of appellant Alderisio's motions for judgment of acquittal.
For the reasons hereinafter stated, we find no error in these rulings or in any other aspect of the proceedings below. Accordingly, the judgments of conviction are affirmed.
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